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Tuesday, 25 May 2010

You just can't keep everyone happy when it comes to patents, it seems. The criticisms of the system for protecting life forms have long been known and articulated, and these have led to checks and balances in the patent system which are intended to preserve the public interest and to take account of moral sensitivities (for example click here for Directive 98/44 on the legal protection of biotechnological inventions, the so-called Biopatent Directive, in the European Union).

Right: "If the Patent Office won't have her, we'll have to carry her all the way back to the staff canteen ..."

Now well-known patent critic Professor John Sulston is anxious that the patent system should not confer protection on the investment of those whose inventions consist not of real life forms but of synthetic ones. According to the BBC,

"A top UK scientist who helped sequence the human genome has said efforts to patent the first synthetic life form would give its creator a monopoly on a range of genetic engineering. Professor John Sulston said it would inhibit important research. US-based Dr Craig Venter led the artificial life form research, details of which were published last week.

Prof Sulston and Dr Venter clashed over intellectual property when they raced to sequence the genome in 2000. ...

Now the old rivals are at odds again over Dr Venter's efforts to apply for patents on the artificially created organism, nicknamed Synthia[on which see Gena Mason's post on PatLit here]. The team outlined the remarkable advance last week in the prestigious journal Science.

But Professor Sulston, who is based at the University of Manchester, said patenting would be "extremely damaging".

"I've read through some of these patents and the claims are very, very broad indeed," Professor Sulston told BBC News. [The broader the claim, the greater the risk of it being overbroad, at least in Europe]

"I hope very much these patents won't be accepted because they would bring genetic engineering under the control of the J Craig Venter Institute (JCVI). They would have a monopoly on a whole range of techniques."

A spokesman for Dr Venter, of the J Craig Venter Institute (JCVI) in Maryland and California, said: "There are a number of companies working in the synthetic genomic/biology space and also many academic labs.

"Most if not all of these have likely filed some degree of patent protection on a variety of aspects of their work so it would seem unlikely that any one group, academic centre or company would be able to hold a 'monopoly' on anything.

"As the JCVI team and Dr Venter have said, open dialogue and discussion on all issues surrounding synthetic genomics/biology, including intellectual property, is very necessary for this field so these questions and discussions are all very important."

... Professor Sulston made the comments at the Royal Society in London where he was discussing a report entitled Who owns Science? The report was produced by the Institute of Science, Ethics and Innovation at Manchester University, which the professor chairs. [On 'Who owns science' and Professor Sulston's contribution to the debate see earlier IPKat post here]

The study details an increased use of patents by researchers [But that's good news, isn't it?].

"My objections to patenting human genes or genes from existing living organisms is that they are inventions or discoveries," said Professor Sulston. ... He believes that the over-use of patents is inhibiting research that could otherwise greatly benefit society, such as better healthcare for the poor. [Patents inhibit research? This is a belief, it seems. Where's the data?]

Professor Sulston commented: "[It's fashionable to think] that it's important to have strong intellectual property and that it's essential for promoting innovation. But there's no evidence that it does promote innovation. There's an unwillingness to consider any problems." [the suggestion that this is some sort of fashion or fad is insulting to the many people who have toiled to produce data to prove or disprove links between the availability of patents, the creation of innovations and the investment that takes them from laboratory to marketplace]

But he also believes that these arguments are now beginning to be accepted.

Last November, a US company, Myriad Genetics, lost parts of its patent rights on two breast cancer genes following a legal challenge by civil rights groups [This makes it looks as though the ruling was on a civil rights issue -- the Kat thought it was a matter of patent law: see eg here]".

The IPKat wonders what his readers think about Professor Sulston's comments.

14 comments:

Anonymous
said...

Prof. Sulston's comments are exactly the sort of line that generic companies and "interested" non-governmental organisations in India are taking as a defense to patent infringement; all in the name of "public interest".

same old same old - academic says patents inhibit research, ignoring the fact that the very purpose of the patent system is to reward and stimulate original research of exactly this kind - this isn't 'fashion' it's the backbone of all IP

would he feel the same if he had invented a new, patentable, technique, and was happily spending the royalties from all the licending agreements on shiny new lab equipment..?!

he probably doesn't need to worry, anyway: 'ground breaking' patents don't get granted these days - or they get invalidated very easily (see Ariad v Eli Lilly in the US, for a case in point)

I was at the Royal Society talk in question. Prof. Sulston was asked a question on Synthia, to which he responded that the work was done simply as a "tour de force" and that nothing useful would result from it.

Almost in the same breath, he indicated that the patent claims were outrageous because they covered any genome transplant of any kind (which, having looked at the claims briefly, is not a million miles from the truth) and that it would block basic research. He urged one of the other panellists, UKIPO chief John Alty, to ensure that the patent was "taken apart" and not granted in its present form.

Anon@1:34: He also indicated that Manchester University's earnings from patents were negligible and barely enough to cover the cost of obtaining them (or words to that effect).

The academic stance adopted by people such as Prof Sulston irritates me - most of the information disclosed in patents generally isn't published or publicly available anywhere else. Large numbers of academics in contrast keep their research close to their chests refusing to openly share any information with their competitors. Add to this the fact that it is difficult for Joe Public to gain easy access to many published journals which leads one to ask, who/what is actually inhibiting science? I would say it's the academics stifling research not patents.

Not my area of expertise, so I can’t comment on the breadth of the claims in the PCT application linked to on PatLit. The EPO, acting as ISA, seems to think they are inventive.

I’m intrigued, however, by the examiner’s comment re industrial applicability: “Theoretically it could be imagined that such a “minimal” microorganism could be industrially applicable. Therefore, the requirements of Art 33(4) seem to be satisfied”.

While the EPO as ISA says most claims are inventive, they also say that all claims except a few are not novel.

There is also some discussion of the need to disclose the invention (the IPRP, in the section on clarity and sufficiency, states the disclosure is "clearly insufficient") so that others can practice it. In that way, valuable information is passed on to future scientists, a part of patent law that Prof. Sulston should perhaps take some time to understand.

i'm no expert, but i personally feel there is not much wrong with patent law itself, but the system partiularly in the US enables invalidly granted patents to be used against competitors which cannot defend themselves due to the high costs involved (the lawyers costs in the US run into millions, even if the alleged infringer wins, their costs are usually not reimbursed). Reexamination is a cheaper alternative but can still be prohibitively expensive and also has it's disadvantages.So much time is spent assessing the risk of infringing patents, which are actually invalid, the costs are enormous. This gives the whole patent system, also in other countries, a reputation for being unfair, expensive and pointless. Without a patent system there would however be few technical advances.

One question. How much research have you above patent fans done that advances the human condition? We know how much Prof Sulston has done. Now hold that thought and query, who should the public listen to on this issue?

I would suggest that on the issue of patents, those who know about patent law are well qualified to comment.

In all areas of science all opinions should be welcome. But, if they are demonstrably incorrect, then they are incorrect, no matter how eminent the source is. I don't say that the views discussed here are demonstrably incorrect, merely that you should not criticise people for trying to demonstrate that fact. That is how knowledge is advanced, hypotheses are proposed and tested. If they fail, then you look for a new hypothesis. To suggest that people, be it the public at large, or a specific group, should accept statements without challenge merely because they come from a distinguished source is surely not helping the advancement of knowledge and understanding.

Now hold that thought and query: who should the public listen to on this issue?I would suggest they should listen to everyone, and form a view as to the validity of the arguments put forward on all sides. I take it the earlier poster believes they should just listen to the person who has done the most to advance the human condition (presumably on the basis that he is therefore always right about everything? I'm not sure I follow the logic there).

I missed the contradictory indications re novelty and inventive step in the IPRP - very strange. In any case the EPO case record shows that the priority claim has been questioned, leading to one of the inventors' academic post-priority publications being cited.

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